Opinion
Argued March 16, 1894
Decided April 10, 1894
Myron H. Peck, Jr., for appellants. Edwin McKnight for respondent.
The plaintiff has recovered upon a judgment rendered in the courts of Michigan for a deficiency arising upon foreclosure and sale of mortgaged premises in that state in the year 1887. When the present action was commenced the plaintiff and one of the defendants were residents of Michigan, and the other defendant a resident of North Dakota. In December, 1889, the summons in this action was served upon both defendants without the state, pursuant to an order of publication. A warrant of attachment was also issued to the sheriff of the county where the action was brought, but no property was levied upon. On the 30th of January, 1890, the defendants entered a general appearance in the action by an attorney of the court, who served a general notice of retainer. In April following an answer was served by the same attorney, alleging that neither of the defendants were residents of the state or had any property therein, and that the court had no jurisdiction of the action. It also alleged that in the year 1886 the plaintiff recovered in the courts of that state a judgment upon the identical cause of action contained in the complaint, and that such judgment was a bar to this suit. The appeal, therefore, presents two questions: (1) Whether the court had jurisdiction to render this judgment. (2) Whether the former judgment is a bar.
The service of the notice of retainer was a voluntary general appearance in the action, and equivalent to personal service. (Code Civ. Pro. §. 424; Olcott v. MacLean, 73 N.Y. 223; Ward v. Roy, 69 id. 96; Og. L. Ch. R.R. Co. v. V. C.R.R. Co., 63 id. 176; Jones v. Jones, 108 id. 415; Mors v. Stanton, 57 id. 649.)
It is urged that the defendants were obliged to appear and present the facts to the court or suffer default, and, therefore, the appearance was not voluntary. This does not change the effect of the appearance. When a party does not intend to subject himself to the jurisdiction of the court he must appear specially for the purpose of raising the question of jurisdiction by motion, or he may allow the plaintiff to go on and take judgment by default without affecting his rights, since no judgment entered without service of process in some form could bind the defendant, and the question of jurisdiction would protect him at any stage of the proceedings for its enforcement, provided it has not been waived by his own act. But if the defendant elects to come before the court and there try the questions, he cannot afterwards deny the jurisdiction, or be heard to claim that it was not a voluntary appearance. The court had jurisdiction of the subject of the action. It was the judgment of the courts of a sister state which the plaintiff had the right to enforce here if jurisdiction of the person could be obtained, though the defendant resided in another state. The former judgment was not a bar, as it was void for want of jurisdiction. There was no service of process within the state, no appearance by the defendants and no levy upon property under an attachment. In the absence of personal service within the state or a general appearance, the court had no jurisdiction to render the judgment without proof of the granting of an attachment and a levy by virtue thereof upon property of the defendants within the state. (Code, § 1217.) There was no such proof made, and it is not claimed that the facts existed upon which it could have been made. Without it, mere service out of the state, though in pursuance of an order of publication, did not give jurisdiction to render the judgment.
It follows that the judgment is right and should be affirmed, with costs.
All concur.
Judgment affirmed.